Susan Loraine Adam Metzler

This is a costs endorsement on appeal from a jury trial judgment in a historical sexual assault case.

The appellant challenged the jury instruction on loss of income damages, the punitive damages award, and the prejudgment interest rate.

The Court of Appeal upheld the entitlement to and quantum of damages for loss of income and punitive damages but reversed the prejudgment interest award.

The respondent sought substantial indemnity costs of $179,660.31, relying on a presumption under the Victims' Bill of Rights.

The court awarded substantial indemnity costs of $100,000, finding that the full amount sought would not be in the interests of justice, particularly given the disproportionate relationship between trial costs and appeal costs.

The respondent was sexually abused by a priest while a student at a school run by the appellants.

The trial judge and jury found the appellants vicariously liable.

The jury awarded $350,000 in general damages, $75,000 in aggravated damages, $56,400 in future treatment costs, $1,588,781 for past and future income loss, and $500,000 in punitive damages.

The appellants appealed on three grounds: the jury instruction on burden of proof for past income loss was erroneous, the punitive damages award was excessive, and prejudgment interest should not have been set at 5 per cent.

The Court of Appeal upheld the jury instruction and punitive damages award but found the trial judge erred in setting prejudgment interest at 5 per cent instead of 1.3 per cent.

Following a trial where the Plaintiff was awarded damages against Maryvale for sexual assault but his action against the Archdiocese of London and Father Horvath was dismissed, this endorsement addresses costs.

The Plaintiff sought substantial indemnity costs against Maryvale and a Sanderson or Bullock order to make Maryvale responsible for the costs of the successful co-defendants.

The Archdiocese and Father Horvath, having successfully defended, sought costs from the Plaintiff.

The court awarded the Archdiocese and Father Horvath $125,500 in costs payable by the Plaintiff, finding no basis for a Sanderson or Bullock order due to the independent nature of the claims and lack of blame-shifting.

The court awarded the Plaintiff $175,000 in substantial indemnity costs against Maryvale, accounting for the time spent on the unsuccessful claims against the other defendants.